R v Barakat (No 8)

[2016] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation:	R v Barakat (No 8) [2016] NSWSC 1382
Hearing dates:	27 September 2016
Decision date:	29 September 2016
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The application for a verdict by direction is refused.
Catchwords:	CRIMINAL LAW – shooting murder – application by accused for verdict by direction
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6(1) Evidence Act 1995 (NSW), s 136
Cases Cited:	Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 Dicianna v R; Pintabona v R [2015] NSWCCA 201 Doney v R (1990) 171 CLR 207; [1990] HCA 51 JMR (1991) 57 A Crim R 39 R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452 R v Josephine Pintabona (unreported, NSWSC, 28 May 2013) Regina v PL [2012] NSWCCA 31 R v R (1989) 18 NSWLR 74 R v Tang [2006] NSWCCA 167 R v XHR [2012] NSWCCA 247 Shepherd v The Queen (1990) 170 CLR 573
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Barakat
Representation:	Counsel: P McGrath SC (Crown) D Dalton SC (Accused Barakat)   Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused Barakat)
File Number(s):	2013/00327619
Publication restriction:	Nil

Judgment

Background

1. On 7 September 2016, Mahmoud Barakat (“the accused”) pleaded not guilty before me to an indictment charging that on 12 July 2013 at Abbotsbury he did murder Ali Jammas (“the deceased”). At the same time David Younes (“Younes”) pleaded not guilty to being an accessory after the fact to that murder.

2. A number of pre-trial applications were heard and judgments given between 7 September 2016 and the empanelment of a jury on 20 September 2016. On 13 September 2016, prior to the jury being empaneled, the Director of Public Prosecutions directed that there be no further proceedings in relation to the count charged against Younes.

3. On 27 September 2016, the Crown closed its case. Mr Dalton SC then indicated that the accused would not be presenting a case. The jury was sent home with a view to closing addresses commencing the following day. Mr Dalton then made application for a verdict by direction. As Beazley JA (as her Honour then was) noted in Regina v XHR [2012] NSWCCA 247 at [10], such an application attracts the legal vernacular of a “no case to answer” submission. I use the expressions interchangeably in this judgment.

4. Although such an application is usually made at the end of the Crown case, rather than at the conclusion of both cases, I do not consider the timing of the application to be any bar to my consideration of it.

Evidence adduced in the Crown case

5. The evidence led in the Crown case can be summarised as follows.

6. As at 12 July 2013 Ali Jammas (“the deceased”) resided at 12 Thorpe Place in Abbotsbury. That house is at the end of a cul-de-sac. A number of other premises in the street had CCTV cameras installed at the front of their homes at that time.

7. At about 6:30am on 12 July 2013, a silver Impreza Subaru WRX vehicle was captured in CCTV footage taken from cameras in various locations in Thorpe Place, Abbotsbury. The CCTV footage shows that the vehicle drove past 12 Thorpe Place and then parked a short distance away. The vehicle was then captured continuously on CCTV, parked in the same position in Thorpe Place. No movements were detected to or from this vehicle between 6:30am and 10am.

8. Only one CCTV camera captured the vehicle as it remained parked in the street during that time. Whether by accident or design the vehicle was parked in a position such that most of it was obscured by a tree in the foreground. As a result it is not possible to determine how many people were in the car, the numberplate of the car or anything else of significance from that footage.

9. At about 10am a person exited the passenger side of the vehicle (“the shooter”). He was dressed in a dark coloured hooded top, track pants and white sneakers. He had the hood of his top pulled over his head. CCTV captured him running in the direction of 12 Thorpe Place. The quality of the footage of the shooter is poor for reasons explained below.

10. At this time, the deceased is depicted in other CCTV footage outside his home at 12 Thorpe Place. He is seen talking on a mobile phone. His cousin Richard Mourad gave evidence in the trial that he was speaking with the deceased at the time. The deceased can be seen in the CCTV footage pulling a rubbish bin from his driveway to his home as he spoke on the telephone.

11. The shooter approached the deceased and produced a handgun. At close range he shot the deceased no less than 6 times. He was shot 4 times in the torso. He managed to make his way back into house where he collapsed and died in front of his children. The shooting itself was not captured by an CCTV but was witnessed by two neighbours

12. The CCTV footage next depicts the shooter running back to the waiting car, which then drove off at high speed.

13. The evidence of a paramedic from the NSW Ambulance Service was that she and her offsider were called to a job in Thorpe Place at Abbotsbury at about 10:07am. It was reported to them that a man aged 35 to 40 had been shot. Upon arrival at the house she observed a man lying on his back on the floor. Two police officers were already performing cardio-pulmonary resuscitation. The ambulance officers and a doctor performed various medical interventions, but the deceased was not able to be resuscitated and died at the scene.

14. Various neighbours of the deceased who were at home at the time of the shooting gave evidence in the trial.

15. On the morning of 12 July 2013, Catherine Tomasetti was at her house at XX XX XX. She was painting her daughter’s bedroom alongside the right side of the window that looked out in the direction of the deceased’s house. It was the morning when the garbage was collected and that morning the garbage truck was late; it came between 9 and 9:30 am. She heard someone wheeling the bin in and thought it was her daughter. She then heard a loud noise that echoed and made her freeze. She did not know what it was and leaned to her left to look out of the window. She saw a man in the driveway of 12 Thorpe Place holding a handgun and pointing it at another man who was crouched on the ground.

16. Mrs Tomasetti described the shooter as being of thin build and a medium height, approximately 5’10”. He was wearing a dark blue hoodie jumper that had a zipper up the front. The hoodie was large and it was pulled over his head, cloaking the man’s face and eyes. It looked like he was hiding his face. She could only see the top half of the man because the bottom half of his body was obscured by the perimeter fence. Nothing was said at all. She then heard three more gunshots. The shooter then turned and ran away down street. She saw the deceased, who was on his hands and knees, crawl into his house. She could not tell who the person was until the deceased put his head up and started crawling towards the doorway. Mrs Tomasetti gave evidence that they had a CCTV system at their house and that her husband spoke to the police about it.

17. In his evidence, Nicola (“Nick”) Tomasetti said that on 12 July 2013 he was working from home at XX XX XX and that he was in his bedroom at the front of the house, from which the entire cul-de-sac of Thorpe Place could be seen. Mr Tomasetti was sitting at the computer with headphones on listening to music when he heard a loud bang that startled him and caused him to look out of the window. He looked between the blinds and saw a man, first side on and then from the back, running past the house down Thorpe Place in the direction of Hackett Drive. It looked like he was carrying a small black handgun. He described the man as being of a skinny build, about 6’ in height. The man was dressed in dull colours, wearing a black hoodie with the hood right over his head and long pants. Mr Tomasetti only saw a glimpse of the man for a second or two and could not see his face. After speaking to other members of his family, he called triple-0 and then the police.

18. Four other neighbours were home at the time and gave the following evidence in the trial.

19. On the morning of 12 July 2016, Audisho Youkhanna was at  XX XX XX, Abbotsbury. At about 10am, he was upstairs in the bathroom shaving. He heard a loud bang coming from the outside that seemed to be coming from the direction of the cul-de-sac at the end of Thorpe Place. A few seconds later, he looked outside the bathroom window and saw a car, a silver WRX hatchback Subaru, drive down the street in the direction of Cowpasture Road. The car was driving very fast and it sounded like a supercharged car. He allowed police to collect footage from his CCTV system.

20. Nick Tomasetti (father of Nicola Tomasetti) gave evidence that on 12 July 2013 he had a CCTV system operating at his house. The system was purchased on the eBay in July 2010 and consisted of two cameras that cost $100 each. Mr Tomasetti said that the cameras did not record continuously, only when a motion triggered them. He described that when the system is activated a series of six still images would be taken. They would automatically be sent to an email address that could be accessed from any computer and it would then take up to six to ten seconds for the camera to reset and start taking shots again. This witness did not provide any other evidence with respect to the events that took place on the morning of 12 July 2016.

21. On the morning of 12 July 2013, Patrick Mahony was at his home at XX XX XX, Abbotsbury. At about 9:30 am, he went out to the front of his house to collect the garbage bins that were emptied that morning and noticed a silver-coloured car parked directly opposite his house. The car was facing in the direction of Cowpasture Road, its windows were tinted and he saw someone sitting in the driver’s seat of the car. At about 10 am, Mr Mahony was sitting at the kitchen table with Ashny Krishnan. His front door was open with the security door shut.

22. Just after 10 am, Mr Mahony heard a noise that sounded like fireworks. He and Ms Krishnan got up and went to the front door to see where the noise was coming from. They stayed inside and were looking through the screen door when they saw somebody running to the silver car. The man, who he only saw side-on, was wearing a black or very dark coloured hooded jumper. He got into the back passenger door of the silver car with the car taking off in the direction of the Cowpasture Road. At the time that Mr Mahony was making these observations, he was approximately 20m from the car. Shortly after, he saw a young boy who said something like “ring an ambulance”. Mr Mahony gave evidence that he had a CCTV system installed at his house with six cameras, two of which were at the front of the house.

23. Ms Krishnan used Mr Mahony’s phone to call triple-0. The call log on the phone showed that the call was made at 10:03 am.

24. Mr Krishnan reported that she was calling from XX XX XX, Abbotsbury because she had been asked to call an ambulance. She reported that there were five shots and that the shooter had gotten away in the car.

25. A number of police officers gave evidence about the crime scene.

26. Elton Potgieter was a ballistics expert called in the Crown case. He and other officers from the Forensic Ballistics Investigation Section of the NSW Police Force attended 12 Thorpe Place on 12 July 2013. He confirmed that he observed bullet-related damage to the garage door and inside the garage at 12 Thorpe Place. He concluded that a bullet had been fired from outside the garage that had penetrated the garage door and created two impact marks on the northern and western walls of the garage. He gave evidence agreeing that the bullet had separated into two pieces – the jacket and the core – upon impact with the garage door.

27. Mr Potgieter gave evidence that he had attempted to plot the trajectory of the bullet that was fired through the garage door using a trajectory rod. He agreed that this was a somewhat inexact exercise; the garage was an uneven metal surface, the hole in the garage door was angled, and there could have been a deviation caused by the trajectory’s passing through metal. The trajectory calculation performed by Mr Potgieter, among other things, was used by Detective Senior Constable Dominic Raneri from the Forensic Imaging Section in creating a virtual 3D rendering of locations and objects in Thorpe Place. The 3D rendering shows a range around the path of the trajectory rod, in any part of which the projectile may have been fired. In cross-examination, Mr Potgieter agreed that he had not been provided with any independent evidence with respect to the position of the shooter, the manner in which the gun was held, or the height of the shooter. He gave evidence that the height of 1.45m indicated at one point along the possible trajectory was merely the height of the line from the ground at that particular point.

28. Mr Potgieter gave evidence that there were no cartridge cases found at the scene. It is possible either that the projectiles were fired from a handgun that did not discharge the cartridge or that the cartridges were ejected but not located.

29. Senior Constable Christopher Grady was called in the Crown case. He was stationed at the Forensic Imaging Unit with Detective Senior Constable Raneri. Part of his role, and that of Detective Senior Constable Raneri, was the rendering of computerised reconstructions of crime scenes. Senior Constable Grady gave evidence that Detective Senior Constable Raneri used the interactive scene recording and presentation system (“ISRAPS”) to capture a 360 degree image of Thorpe Place. Detective Senior Constable Raneri also used light detection and ranging (“LIDAR”) to create a 3D laser scan of the crime scene, into which he incorporated actual CCTV footage from the crime scene. He then used ISRAPS and LIDAR-generated imagery to create a visualisation of the possible trajectories of the projectile as plotted by Mr Potgieter. He agreed that the further one moves away from the garage door, the greater the range of possible points from which the projectile could have been fired.

30. In July 2013, Detective Senior Constable Luke Bressington was stationed at the Fairfield Police Station detective’s office. He is currently at the Firearm Squad. On the morning of 12 July 2013 his investigation concentrated on the houses in Thorpe Place that had CCTV systems installed. Detective Senior Constable Bressington viewed and collected footage captured by the CCTV systems installed at houses in Thorpe Place. Detective Senior Constable Bressington also noted time discrepancies on some of the recorded footage.

31. The CCTV evidence from X Thorpe Place was in the form of still images, rather than footage. George Geogevitis was called in the Crown case as an expert witness to explain the functioning of the CCTV cameras at that address as at 12 July 2013. He is a consulting engineer specialising in the fields of communications, electronics and power, with experience in constructing, trouble-shooting and repairing audio and video equipment.

32. The cameras at X Thorpe Place contained an image sensor known as a “CMOS” chip. “CMOS” is an acronym for “complementary metal oxide semi-conductor”. They detected motion by looking at changes in the content of images taken frame by frame. If there are no changes from one image to the next, the previous image is discarded. If two images differ significantly, the software in the camera will (if it is set up in this way) tell the camera to save the latest image, along with the next five images, and send those images to a local computer via WiFi. Mr Georgevitis gave evidence that the detection algorithm in the camera may look for change in colour or change in the number of pixels or location of pixels. These matters are part of the design of the camera and are not revealed by the manufacturer.

33. Mr Georgevitis gave evidence that the change in the image caused by a person collecting the yellow bin from the driveway of 12 Thorpe Place may not have been sufficient to trigger the algorithm. He gave evidence that it was possible that the chip in the camera may have been more sensitive to red than to yellow. He confirmed that it was possible that it may have had an effect on whether the camera detected motion that a person in the frame, the shooter, was wearing dark clothing, because of the dark colour of the road in the background.

34. In cross-examination, Mr Georgevitis agreed that CMOS cameras have limitations, including the potential for distortions in the image in circumstances where there are rapidly changing scenes.

35. The CCTV and the observations of Mr Youkhanna revealed that the car parked in Thorpe Place on 12 July 2013 was a silver Subaru WRX. After the shooting, police began inquiries in relation to locating that vehicle. On 30 or 31 July 2013, police happened to observe a silver Subaru WRX parked in Wycombe Street in Yagoona.

36. On 6 August 2013, police executed a search warrant at the premises of Younes at 151 Wycombe Street, Yagoona. Whilst at the premises it was observed that there were a number of CCTV cameras at the premises that captured activity in the driveway, the entrance to a granny flat at the back of the premises where Younes was residing as well as movements in Wycombe Street itself. These CCTV recordings were seized at that time. The Silver Subaru WRX BU51NU was seized later that day. Investigating police issued a request on Younes pursuant to s 14 of LEPRA to provide the identity of the driver of his vehicle on 12 July 2013. Younes was informed that the request was relevant to the deceased’s murder. On legal advice, Younes indicated that he wanted to give a considered response and arranged through his solicitor to provide that information at a later date.

37. After Younes left the police station he met the accused at the Sefton Playhouse Hotel with a friend of the accused, Eleena Bakhos.

38. As at 12 July 2013, the accused was a close associate of Younes. He resided around the corner from him at 5 Rock Street, Yagoona. He was the registered owner of a black 2005 Range Rover with NSW registration CGC97F and a white Lexus with NSW Registration ATO01Q. He was using two mobile telephones, one with the number 0404 955 655 (“the 655 service”) and the other with the number 0497 759 375 (“the 375 service”).

39. After the CCTV footage was seized from Younes’ premises at 151 Wycombe Street police, police examined it. It included footage for 10 July 2013 and 12 July 2013.

40. On 10 July 2013 at 3:11pm the accused is seen in the CCTV footage from 151 Wycombe Street arriving at the premises and meeting with Younes. They enter the detached granny flat where they spend the next hour together. At 4:21pm, they emerge and walk towards vehicle BU51NU, which was parked on the footpath outside 151 Wycombe Street. At 4:23pm, the accused is seen talking on a mobile phone. At the conclusion of the call he shakes hands with Younes near the driver’s door of vehicle BU51NU. He then enters the driver’s seat of vehicle BU51NU and drives off towards Rock Street where he resides.

41. There was no challenge made to the evidence that the accused borrowed Younes’ car at that time.

42. The next sighting of the vehicle was on 11 July 2013 at about 3pm, when it was observed by one of the accused’s neighbours in Rock Street. Mr Yusuf El Jammas, who coincidentally happens to be the deceased’s cousin, gave evidence that at about 4pm that day (the day before the shooting) he saw three people in the vehicle which was at that time parked outside the accused’s house. The accused was not in the vehicle or present at the car at that time. Mr El Jammas gave evidence that he was familiar with the accused.

43. The next CCTV footage of the vehicle at 151 Wycombe Street was at 10:32am on 12 July 2013. It shows the accused dressed in a grey top with a motif and casual clothing exiting the driver’s door of the vehicle BU51NU. He walks past and waves at Younes’ brother, Dany Younes. He then approaches the letterbox outside 151 Wycombe Street and leaves something in it (on the Crown case the item was the keys to the vehicle). After he puts the item in the letterbox, he is seen to run off in the direction of Rock Street. It was not suggested that the man in this CCTV footage was not the accused. A map was before the jury showing where the accused resided in comparison with Younes’ address. The evidence of Detective Sergeant Olivares is that it would take one minute to drive from one house to the other.

5. Between 10 July 2013 and 12 July 2013, the vehicle BU51NU is not seen at 151 Wycombe Street, Yagoona. The Crown case is that it was in the accused’s possession throughout that time. Telephone records and CCTV show that at the time that it was returned, Younes was present in the granny flat at the back of 151 Wycombe Street and did not emerge until 1pm.

6. When the Crown Prosecutor gave his opening address he told the jury that there were two indispensable intermediate facts in the Crown case that had to be established beyond reasonable doubt. The first of these was that the silver Subaru in Thorpe Place used in the murder was Younes’ vehicle.

7. Much of the evidence adduced in the Crown case sought to establish this fact. That evidence is as follows.

8. Gokhan Gogebakan gave evidence on 22 September 2016 he lived in Wycombe Street in Yagoona and that the Younes family who lived at 151 Wycombe Street were his neighbours. In March 2013, Mr Gogebakan was looking to buy a car with the idea of doing it up and selling it at a profit. He came across a Subaru WRX advertised on the Gumtree website. It was the sportier version of the WRX, the Evo 8 model, which had leather seats and a sunroof. The car did not have an engine and he negotiated a price down to $3,000. The car was taken to the driveway of his house and whilst it was there his neighbour Younes came to have a look and expressed his liking for the car.

9. Mr Gogebakan negotiated a price of $4,000 for a WRX engine that was advertised on the Gumtree website and arranged for a friend, who ran a mechanical business, to fit the engine and make it ready for registration. To make it more presentable, a dump pipe was connected between the turbo charger of the engine, which was a standard turbo, and the vehicle’s exhaust. The car had a number of non-standard features; namely, the exhaust, 18-inch wheels that were LENSO brand, and tinted windows that were darker than the standard Subaru tint. The vehicle was registered on 8 April 2013 with the registration plates BU51NU.

10. Shortly after that, Mr Gogebakan accepted Younes’ offer of $13,000 cash for the car. After he sold the car to Younes, he saw it from time to time parked outside 151 Wycombe Street and on one occasion on the street outside a house in nearby Rock Street, which often had a white Lexus 4WD parked in the driveway.

11. A couple of times during daylight hours, Mr Gogebekan saw Younes’ friend, a male who lived in Rock Street and who also had a white Lexus, driving Younes around and coming to and from 151 Wycombe Street including driving off in the vehicle BU51NU. He never saw the male outside the car and could only describe him as Middle Eastern in his late twenties with short hair and coloured eyes. He assumed that Younes had given the car to his friend to drive him around because Younes lost his licence in about July 2013.

12. The sound of the WRX exhaust when it starts was loud and distinct and because of the sound he could tell when it arrived and left if he was in the front of his house.

13. On 6 August 2013, when police came to Younes’ house, he saw a white Lexus driving past when the police was outside. It was driven by a female. The male from Rock Street whom Mr Gogebakan had seen driving BU51NU often since Younes lost his licence was also in the car.

14. After Younes’ silver Subaru with registration BU51NU was seized on 6 August 2013, it was examined by Senior Constable Peter Mason. Leading Senior Constable Mason is attached to the Engineering Investigations Section of the NSW Police Force. He is also a licensed and trade qualified motor mechanic. In May 2014, Leading Senior Constable Mason was asked by Detective Sergeant Olivares to conduct an identification examination of a 2005 silver/grey Subaru Impreza WRX bearing registration BU51NU in a police holding yard. He noted the exterior features of the vehicle, including a decal or sticker on the passenger side rear door that read “Club Spec EVO 8”. He gave evidence that most of these features were standard. He observed that the wheels were “aftermarket 18-inch six spoke silver alloy wheels” of the “Legend” brand. “Aftermarket” means that the wheels were not standard or factory-fitted alloy wheels. He noted that the wheels were “low profile”, meaning that the sidewall of the tyre is thinner than a standard tyre. The exhaust system was an APS brand system, not a Subaru system.

15. Leading Senior Constable Mason compared the vehicle that he examined with the vehicle depicted in still images taken from CCTV footage of Thorpe Place on the morning of 12 July 2013. He concluded that the stills depicted a Subaru WRX vehicle of the same make and model of the vehicle that he examined. He did not say that they are the same vehicle, but rather that they are of the same make and model with features in common. He was not able to discern, from the CCTV footage, any information with respect to the brand of the wheels or the exhaust.

16. In cross-examination, Leading Senior Constable Mason confirmed that he had not received any material showing the vehicle of interest, or other vehicles of the same make and model, placed into the vision of the CCTV cameras at Thorpe Place for the purposes of comparison. He agreed with Mr Dalton that the spokes of BU51NU appear to have been painted bronze.

17. Rodney McCourt was a forensic imagery analyst called in the Crown case. He analyses CCTV footage or other images of crime scenes in order to perform, for instance, clothing comparisons, height calculations of offenders or vehicle comparisons. Mr McCourt was asked by Detective Sergeant Olivares to determine whether a vehicle depicted in a series of photographs was the same make and model as a vehicle seen in CCTV footage from Thorpe Place.

18. Mr McCourt gave evidence that his methodology was to work from the assumption that two vehicles were not the same make and model. This was part of his training as an imagery analyst. He would then try to find significant differences between the vehicles. If no differences were evident, he would list their similarities one by one. He agreed that, although he had been told that the vehicle in the photographs was a Subaru Impreza WRX, he put that out of his mind for the purpose of the comparison.

19. Mr McCourt gave evidence that he was not an expert in the makes and models of motor vehicles and that he did not examine the vehicle depicted in the photographs himself. He was provided with 51 photographs of excellent quality and there would have been no benefit in examining the vehicle in person. He used various functions in Abobe Photoshop to enhance the CCTV stills, including a “deinterlace” function. He explained that video footage is made up of odd and even fields; movement of an object in footage can sometimes cause those fields to separate slightly, leading to distortion of the image. Deinterlace corrects that distortion.

20. Mr McCourt agreed that he was not able to find any significant differences between the vehicle depicted in the photographs supplied by Detective Sergeant Olivares and the vehicle in the CCTV footage. He found a number of features that the two vehicles had in common, including colour and shape. The two vehicles each had a sunroof, a horizontal dark-toned trim that ran the length of the roof, similar doors, similar wing mirrors, similar windscreen wipers, similarly coloured and positioned number platesk, similarly sized and shaped rear spoilers and other similar features. Mr McCourt concluded that the imagery analysis “lent powerful support” to the proposition that the two vehicles were the same make and model.

21. Mr McCourt confirmed that he had been asked whether it would be possible to calculate the height of the person in the CCTV footage by reference to the car. Mr McCourt gave evidence that he did not feel that he could carry out a meaningful calculation having regard to the quality of the footage and the posture of the person. In cross-examination, he agreed that an estimate of the person’s height by a layperson would be unreliable.

22. The Crown tendered promotional material from Subaru in respect of the 2005 Impreza WRX model. It details the inclusion of following features: 2.0 Litre Turbocharged Boxer Engine, 168kW@6000 rpm & 300 Nm@3600 rpm, Alloy Wheels (4), ABS Anti-lock Brakes with 4 Wheel Discs, DataDot Security, Dual Front Airbags, Immobiliser Security System, Keypad Alarm System, Sports Body Kit, and Symmetrical All–Wheel Drive.

23. Detective Sergeant Olivares gave evidence that there are 270 silver/grey Subaru Impreza 2003-2005 WRX vehicles registered in New South Wales. Of those, 95 were registered to addresses in south-west Sydney. The following exchange occurred in cross-examination:

“Q. Starting on page 1 I don't propose to go through the actual addresses and names, your Honour, but they include vehicles registered investigation for the suburbs of Greenacre, Belmore, Ambarvale, Peakhurst, Roselands, Kingsgrove, Bonnyrigg Height, Punchbowl, Ingleburn, Holesworthy, Bankstown, Liverpool, Villawood, East Hills, Fairfield, Edensor Park, Rosemeadow, Harrington Park, Burwood, Liverpool, Bosley Park, Bexley, Smithfield, Padstow Heights, Bonnyrigg, Bosley Park, Yagoona which is Mr Younes' Preston, Canley Vale, Rosemeadow, Casula, Hinchinbrook, Liverpool, Mortdale, Fairfield Heights, Chester Hill, Punchbowl, Yagoona, Canley Vale, Smithfield, Moorebank, Loftus, Burwood, Kingsgrove, Edmonson Park and Carlton on page 1, is that correct?

A. Yes.

Q. Then page 2, Wattle Grove, Guilford, Smithfield, Belmore, Ambarvale, Peakhurst, Roselands, Bringelly, Bar Point, Kingsgrove, Bonnyrigg Height, Holsworthy, Hurstville, Bexley, Liverpool, Mount Pritchard, Villawood, Bosley Park, East Hills, Campbelltown, Fairfield, Narellan Vale, Rosemeadow, Liverpool, Allambie Heights, Bosley Park, Campbelltown, Bexley, Smithfield, Bosley Park, Yagoona, Preston, that is another one for Mr Younes, I might note, that Yagoona, that is the 94. Preston, Preston, Rosemeadow, Casula, Liverpool, Yagoona, Marylands, Chifley, Smithfield, Chipping Norton, Bangor, Moorebank, Belmore, Belmore, Guilford, Kingsgrove, Edmonson Park and Boyds Point; is that correct?”

63. Detective Sergeant Olivares conceded that he had not made any inquiries with any of the owners of those vehicles and was not in a position to state whether any of them had similar wheels to the alloy wheels observed in the CCTV footage in Thorpe Place on 12 July 2013.

64. Text messages passed between the accused and Younes with respect to Younes’ vehicle BU51NU. Detective Sergeant Olivares gave evidence that, at around 1am on 12 July 2013, the accused’s 655 telephone service received a message from the service used by Younes that read, “Leave it on rex’s tyre.” On 7 July 2013, Younes had sent a message to that service that said, “The keys for the rex are in the letter box.”

65. The Crown relied upon evidence of the accused’s telephone records to show that they were not in use and at his home in Yagoona at the time of the shooting. They relied upon this as a circumstance in support of its case as being consistent with the accused deliberately leaving his telephones at home so that his movements that morning could not be detected by the location of his telecommunications.

66. The call charge records and reverse call charge records for the accused’s 375 service show that that service did not transmit at all between 12:26am and 10:31am that day. The accused sent text messages at those times, which were transmitted through the Bankstown Waterboard cell tower. The call charge and reverse call charge records for the accused’s 655 service show that he had an 82-second telephone call with Younes at 3:12am and then made another call at 10:31am. Incoming calls to that service in the meantime were diverted to voicemail and incoming text messages went unanswered. Each communication went through the Yagoona Smith St cell tower.

67. The fact that the records show use of the accused’s telephone at approximately 10:31am is consistent with the CCTV footage at that time in Wycombe Street showing the accused holding and looking at something in his hand that could be a mobile phone.

68. Adam Gelfe of the Law Enforcement Liaison Section of Telstra Corporation Limited (“Telstra”) gave evidence about the functioning of the Telstra network and about the accused’s call charge and reverse call charge records. Both of the accused’s phone services were with Telstra. He gave evidence that telephone services seek out the Telstra base station, or cell tower, with the strongest signal when they make a call or send a text message. A service may also make contact with the Telstra system for the purposes of transmitting data, or the system with the phone in order to maintain a connection. He gave evidence that cell towers are generally named for their geographical location.

69. The Crown case was a circumstantial one. In addition to the above evidence, the following evidence was also led in the Crown case from which inferences were available to be drawn by the jury.

70. Detective Senior Constable Katherine Tierney was a plain clothes constable attached to Fairfield LAC in July and August 2013. On 6 August 2013, between about 10am and midday, she was in an unmarked police vehicle in Wycombe Street, Yagoona with two other police officers. At 11:35am, two marked police cars drove into Wycombe Street and parked outside 151 Wycombe Street. At about 11:40am, she noticed a white Lexus 4WD registration plate ATO01Q drive south onto Wycombe Street from Ward Street. The vehicle then drove past 151 Wycombe Street. At the relevant time the accused owned a white Lexus with registration ATO01Q that was ordinarily driven by his wife.

71. There is CCTV footage of the accused visiting a government office in Campsie at around 11:40am on 12 July 2013. He is seen to be wearing different clothing from that which he appears to be wearing at 151 Wycombe Street at 10:32am, which is different clothing again to that worn by the shooter in Thorpe Place.

72. There was evidence from police that the time needed to travel from 12 Thorpe Place in Abbotsbury to 151 Wycombe St in Yagoona at 10:02am observing all road rules varied, in police experiments, from as little as 22 minutes, 22 seconds and to as long as 36 minutes. Detectives Simpson and Lam drove different routes simultaneous in normal traffic conditions, each commencing at 10:02am outside 12 Thorpe Place. Those officers took 22 minutes, 22 seconds and 25 minutes, 55 seconds respectively to travel the distance. Detective Sergeant Olivares took four different routes from 12 Thorpe Place to 151 Wycombe Street,commencing 10:02am every weekday morning. He completed each route five times. Maintaining all posted speed limits and obeying the prevailing traffic conditions, a range of driving times was obtained. The shortest time was 23 minutes and the longest 36 minutes or thereabouts.

73. On 16 October 2013, police attended the home of the accused’s friend Eleena Bakhos and spoke to her about her knowledge of the murder. She was shown a picture of the deceased and an image of the silver Subaru WRX captured by CCTV in Thorpe Place on 12 July 2013. She denied knowing anything about the murder. She later telephoned the accused and met up with him and Younes very shortly afterwards at the Three Swallows Hotel in Yagoona.

74. About 7:00am on 30 October 2013, the accused was arrested at his home at 5 Rock Street in Yagoona. He was cautioned and declined the offer to participate in a recorded interview. A search warrant was executed at 5 Rock Street. A search of the premises located a number of jumpers but none matching the one he is seen wearing in the CCTV footage at 151 Wycombe Street on 12 July 2013.

75. Detective Sergeant Olivares gave evidence that there is no forensic evidence in Younes’ vehicle including gunshot residue.

76. There is no evidence in the Crown case that the accused and deceased knew each other. Nor is there any evidence as to motive.

77. There is evidence that the accused is 171cm, or approximately 5’7” in socks, and approximately 173 cm in sandshoes, or 5’8”.

The nature of the Crown’s circumstantial case

78. In his opening address, the Crown Prosecutor informed the jury that the Crown brought its case on the basis that the accused was either the driver of the vehicle seen in Thorpe Place in the morning of 12 July 2013 or the shooter. Although not expressly stated in the opening address, this submission was based on the Crown case being brought as one of joint criminal enterprise. If the jury were satisfied beyond reasonable doubt that there was an agreement between the accused and the other person in the vehicle to shoot the deceased and that the accused participated in that agreement, then the jury did not need to be satisfied beyond reasonable doubt that the accused was the shooter. Such an agreement could be inferred from the circumstances of their both being in the car conducting surveillance, one of them shooting the deceased and the other driving the car off at speed.

79. The Crown Prosecutor described the Crown case as being one based on circumstantial evidence. After describing the nature of circumstantial evidence generally he identified two indispensable aspects of the case, or intermediate facts, of which the jury would have to be satisfied beyond reasonable doubt in order to convict the accused. Those two matters are as follows:

1. That the silver Subaru WRX Impreza seen in Thorpe Place between 6.30am and 10am on 12 July 2013 was Younes’ vehicle BU51NU; and

2. That the accused was in that car, either as the driver or the shooter.

The application for a directed verdict of acquittal

80. In his submissions, Mr Dalton accepted that the Crown may have an arguable circumstantial case that the vehicle seen in Thorpe Place transporting the shooter was the vehicle belonging to Younes. He did not base his application for a directed verdict on any submission that the evidence was not capable of establishing that fact beyond reasonable doubt.

81. Rather, Mr Dalton’s application was based on a submission that, even if the jury accepted beyond reasonable that the vehicle was that of Younes, the evidence was not capable of establishing beyond reasonable doubt that the accused was in that vehicle in Thorpe Place at the relevant time. The evidence was not capable of showing he was either the shooter or the driver.

82. Turning first to the Crown case that the accused could have been the shooter, Mr Dalton noted that the descriptions of the eyewitnesses were inconsistent with the accused being the shooter. The evidence of Catherine Tomasetti was that the shooter was approximately 5’10”, being the same height as her husband. Her son Nicola Tomasetti gave evidence that the shooter was approximately 6’ tall, which was the same height as him. That evidence was not challenged by the Crown. It was not suggested to either of those witnesses that they could be wrong about their estimates, no doubt because there was no contrary evidence to put to them. The evidence is that the accused is 171cm in socks or approximately 173 cm in sand shoes (about 5’7”).

83. Mr Dalton next addressed the evidence in relation to the descriptions of what the shooter was wearing. Both Mrs Tomasetti and her son described the clothing worn by the shooter. Mrs Tomasetti described the shooter as wearing dark clothing, including a jacket with a zipper, being all one colour and without any writing or motif on the front or back, with a very large hood. Mr Dalton noted that when the accused returned Younes’ vehicle at approximately 10:30am, he is wearing a light to medium coloured jumper with no zipper and a motif and writing on the front.

84. Mr Dalton made application restricting the use that the Crown could make of the material derived from the CCTV footage at X Thorpe Place, which shows the shooter briefly. His submission was that the jury should not be permitted to compare the height of the shooter in that footage with the CCTV footage of the accused at 151 Wycombe Street. The application was based on the evidence of the witness Mr McCourt, whose expert opinion was that even an expert could not make such an assessment as it would necessarily be unreliable. Mr Dalton sought that the use of the material be limited pursuant to s 136 of the Evidence Act 1995 (NSW). He relied upon the decision of the Court of Criminal Appeal in R v Tang [2006] NSWCCA 167, in particular per Spigelman CJ at [120].

80. Mr Dalton submitted that there is no basis to find that the accused was the shooter. Turning to the Crown’s alternative argument that the accused could be the driver, Mr Dalton submitted that there is no basis for the jury to be satisfied of this beyond mere speculation.

81. Even if the jury accepted that the vehicle used in the shooting was that belonging to Younes, that evidence in itself does not place the accused in the vehicle at the time of the shooting. Mr Dalton relied upon the fact that the last time the vehicle was seen prior to the shooting was outside the accused’s premises with three men in it, not including the accused, at approximately 4pm on 11 July 2013. This was based on the evidence of Mr Yusef El Jammas.

82. Mr Dalton further submitted that the evidence showed that, if the vehicle in Thorpe Place was Younes’ vehicle, it must have returned to the accused’s premises at 5 Rock Street before it was driven to 151 Wycombe St by the accused at approximately 10:32am. This is because the telephone records show that the accused’s 655 service was in Yagoona during the morning and was first used by the accused whilst in the Yagoona area at the same time he was dropping the car at 151 Wycombe Street at 10.31am – 10.32am. That this timing is correct is confirmed by the fact that the CCTV footage depicting the accused returning the car shows him to be looking at something that could be a mobile telephone.

83. The police evidence is that the travelling time from 12 Thorpe Place to 151 Wycombe Street can take as little as 22 minutes at that time of day. The vehicle left Thorpe Place at 10:02am. This leaves a period of 28 minutes before the car is returned, sufficient time for it to have first travelled to 5 Rock Street around the corner from 151 Wycombe Street.

84. Mr Dalton submitted that had it been impossible, in terms of timing, for the car to have first travelled to 5 Rock Street before being driven to 151 Wycombe Street he would not have made the application for a verdict by direction. It is the fact that the journey must have been broken at the accused’s premises that is the defect in the evidence.

85. In circumstances where the vehicle could have been used in the commission of the offence and then returned to 5 Rock Street by someone else before the accused drove it back to 151 Wycombe Street, the evidence cannot demonstrate that the accused was not at home during that period and only returned the vehicle to 151 Wycombe Street after the three other men had dropped the vehicle back to 5 Rock Street that morning.

86. The telephone record evidence shows that both of the accused’s telephone services were in the vicinity of his premises at Yagoona during the morning.

87. Mr Dalton submitted that none of the other evidence in the Crown case is capable of demonstrating that the accused was in the car at the time of the murder. Mr Dalton submission is that the evidence with respect to the car is consistent with the vehicle having been used in the offence by someone else to whom the accused on-loaned the vehicle. This would explain his meetings with Mr Younes and Ms Bakhos after the offence.

88. The key point in his submission was that there was sufficient time for the car to return to Rock Street before it was returned to Wycombe Street at 10:30am.

89. He submitted that the Crown was, in effect, relying upon some form of the doctrine of recent possession. Not only is that doctrine not applicable it is not even the evidence in any event. The observations of there being three other people in the car at the last sighting of it prior to the shooting is consistent with there also being three people in the car at the time of the shooting. This is consistent with the evidence that the assailant left and returned from the rear passenger door of the vehicle.

90. All the Crown can prove is that the accused drove the car from Rock Street to Wycombe Street. It is mere suspicion that he was otherwise involved in the murder. He is not charged with being an accessory after the fact to murder. The Crown can prove that he had the opportunity but opportunity alone is insufficient.

91. Mr Dalton relied upon the decision of RS Hulme AJ in R v Josephine Pintabona (unreported, NSWSC, 28 May 2013) as being factually similar to this case. He handed up a copy of his Honour’s ex tempore reasons directing a verdict of acquittal in respect of two murder charges brought against Pintabona and a copy of the judgment of the New South Wales Court of Criminal Appeal in Dicianni v R; Pintabona v R [2015] NSWCCA 201 for its summary of the facts.

92. Josephine Pintabonta was charged with two counts of murder. There was evidence at trial that, on 6 May 2009, her co-accused Dicianni killed the two deceased at their home in Rozelle and then walked around 200m along a street, through a park and a driveway, and along another street; the use of Luminol revealed a trail of bloodied footprints along the way. Dicianni then entered a car parked on the second street through its passenger-side door. There was evidence that the car belonged to Pintabona. She told police that she was the only driver of the car on 6 May 2009. A presumptive test for blood revealed the presence of blood on the passenger seat of the car. DNA analysis of that blood revealed a DNA mixture of originating from a combination of DNA types possessed by one of the deceased and his children.

93. In addition, there was evidence that Dicianni disguised himself as an old woman in order to gain access to the home of the deceased and to avoid detection by security cameras. A scarf found partly wrapped around the arm of one of the deceased men had on it a mixture of DNA from which the profiles of Pintabona and Dicianni could not be excluded.

94. Police spoke to Dicianni on 9 May 2009 under caution. On 11 May 2009, he made arrangements to obtain tickets to Italy for himself and Pintabona. They left Australia on 12 May 2009. Pintabona subsequently returned to Australia and spoke with police on 17 June 2009. She provided Dicianni with an alibi for the night of 6 May 2009.

95. The liability alleged against Pintabona for the murder of the deceased was on the basis that she was party to a joint criminal enterprise with her co-accused, Dicianni, to kill them. His Honour found that evidence permitted the conclusion that there was some prearrangement between Dicianni and Pintabona to meet at the car. The distance of the meeting place from the home of the deceased militated in favour of the view that Pintabona knew that something “untoward” was likely to happen. His Honour considered that the question was whether one could infer from the evidence that Pintabona picked Dicianni up after the offences and that, having regard to that fact, she therefore must have been a party to what he had done or planned to do. While his Honour harboured a “grave suspicion about the matter”, he concluded that the evidence did not “permit of the conclusion that Ms Pintabona was a party to the murders as distinct from being an accessory after the fact.”

96. In relation to the present case, Mr Dalton submitted that there has to be some positive evidence that puts the accused in the car at the time of the commission of the offence. He relied on the facts of R v Josephine Pintabona, submitting:

“DALTON: She could have driven the offender there. She perfectly had the opportunity to do that. Her evidence was about the return of the car and the case was that she drove him away from Leichhardt back to Liverpool to her house and she had a friend waiting for her who she didn't expect and the timing in relation to that was a key component of the Crown case. But that only went to show that she was an accessory after the fact. That couldn't put her in the car at the time the offence took place or that it couldn't make her the driver to the offence. There has to be something positive.

These are things after the event. They provide possibilities but they are not inferences properly drawn to demonstrate the actual involvement and knowledge of an offender.”

Submissions on behalf of the Crown

102. The Crown Prosecutor commenced his submissions by drawing to the Court’s attention the relevant authorities, including Doney v R (1990) 171 CLR 207; [1990] HCA 51. The principles are conveniently set out at [12] – [18] of the decision of the CCA in Regina v XHR.

103. The test is whether there is evidence that is capable of supporting the case that the accused was in the car in Thorpe Place on the morning of 12 July 2013, be it tenuous or inherently weak or vague, which the Crown does not concede. The Crown submitted:

“Even if your Honour thinks that there may be able to be formulated a reasonable hypothesis consistent with his innocence which the Crown has failed to exclude, it's very much a question for the jury, so it's a high bar for the accused to overcome.”

104. The Crown Prosecutor then proceeded to enumerate the circumstances on which it relied to establish its case that the accused was in the vehicle at the relevant time.

105. First, he relied upon the fact that it was the accused who borrowed the vehicle on 10 July 2013, two days before the shooting, and it was the accused who returned it half an hour after the shooting. It was not returned to 151 Wycombe Street during that time.

106. The Crown Prosecutor accepted that this evidence was weakened by the evidence of the vehicle being seen with three people in it, not including the accused, the afternoon before the shooting. Nonetheless, the Crown Prosecutor submitted, it was the accused who returned the car the following day.

107. As for the clothing worn by the shooter, the Crown Prosecutor accepted that he could not assert that the clothing is the same. Despite this, the Crown Prosecutor submitted that it is not inconsistent with that clothing. He relied upon the evidence of Mr McCourt that the poor quality of the CCTV footage could distort the colour. He accepted that the jumper worn by the accused in Wycombe Street at 10:30am appears lighter than that worn by the shooter.

108. The Crown Prosecutor addressed the evidence of the descriptions given by both Mrs Tomasetti and her son Nicola. He submitted that the first description given by Nicola Tomasetti to the triple-0 call was in these terms, "He wasn't a big guy. I would say he was fit. I wouldn't say he was overweight". He noted that Nicola Tomasetti’s stated that the hoodie was "a black hoodie, dressed in dull colours," and his later statement was, “I wouldn't be able to tell you exactly what colour the pants or jacket was, because I only saw the person for a few seconds." He noted that the eyewitnesses only had 15 seconds or so to observe the shooter.

109. The next evidence upon which the Crown relied was the non-use of either the 375 or 655 service by the accused that morning before 10am.

110. The Crown relied upon are the meetings between the accused and Younes (and Ms Bakhos) after police contact with one of them. These are on 6 August 2013 (after police put the formal demand on Younes), on 14 August 2013 (after Younes provided information to police) and on 16 October 2013 (after police spoke with Ms Bakhos).

111. The next evidence relied upon by the Crown is that when police searched for the jumper worn by the accused in the Wycombe Street footage at 10.30am on 12 July 2013, they were unable to find it. The evidence was that a number of jumpers were located, but not that particular one.

112. The Crown also relied upon the fact that the accused had access to two vehicles registered in his name at that time. The white Lexus driven by his wife and the dark blue Range Rover. The evidence of police was that the Range Rover was never seen outside the premises at 5 Rock Street during this time. The only sighting of that car was when it was driven by Fayaz Khan, to whom ownership of the vehicle was subsequently transferred.

113. The Crown also relied upon the text messages between the accused and Younes concerning the car. The evidence was that the accused used to borrow it from time to time, not just on this occasion. At 1am on 12 July 2013 a message from Younes' phone to the accused's phone states, "leave it on rex's tyre". This shows that Younes believed that the accused still had the vehicle at that time and was unaware that it had been on-lent.

114. The above evidence constituted the evidence relied upon to prove the Crown’s circumstantial case that the accused was in the vehicle at Thorpe Place between 6.30 -10am on 12 July 2013.

115. The Crown Prosecutor submitted that it could not be said that there was no evidence to support an element of the offence, or from which an element of the offence can be inferred, whether or not there may be competing inferences.

116. The Crown Prosecutor accepted that that the issue for my determination turns on whether the matters relied upon the Crown go beyond merely establishing opportunity and are capable of actually proving the accused was in the car at the relevant time.

Relevant principles

117. The principles in relation to directing an acquittal at the close of the Crown case are well established. In Doney v R, the Court observed at 212 that there was:

"... no doubt that it is a trial judge's duty to direct [a verdict of acquittal] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict."

118. The Court went on to observe at 214-215:

"... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

119. In R v R (1989) 18 NSWLR 74, Gleeson CJ approved the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416:

"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt."

120. In JMR (1991) 57 A Crim R 39, at 44, Lee CJ at CL (Carruthers and Finlay JJ agreeing) accepted that R was authority for the proposition that a judge may not direct an acquittal in a case dependent upon circumstantial evidence:

"... if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated ..."

121. In R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452, the Court was concerned with a no case application in respect of a circumstantial case. King CJ stated at 337:

"The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt." (emphasis added)

122. His Honour went on to observe:

"Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer." (emphasis added)

123. The NSW Court of Criminal Appeal (Beazley P, Hall and Campbell JJ agreeing) in Regina v XHR at [11] approved the passage from R v Bilick and Starke set out at [124] above.

124. In the Victorian decision in Attorney-General’s Reference(No 1 of 1983), referred to at [119] above, it was submitted at the close of the Crown case that there was no case to answer. The trial judge found that there were “countervailing inferences which are capable of being drawn from the evidence, and with at least an equal degree of probability.” The Attorney General referred two questions of law to the Court of Appeal, one of which is pertinent. The Court of Appeal stated (at 414):

“The second question in substance asks whether, if at the close of the Crown case inferences of fact could be properly drawn which were consistent with the innocence of the accused and other inferences of fact could equally properly be drawn which were consistent with the guilt of the accused, the trial judge is bound or entitled to direct the jury to acquit the accused…we should have thought that the question admitted of only one answer…The question asked should also be answered that as a matter of law the trial judge was neither so bound nor so entitled.”

125. In Regina v PL [2012] NSWCCA 31, Bathurst CJ, with whom Simpson J (as her Honour then was) and Adamson J agreed, confirmed that in a circumstantial case a judge cannot enter a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated (At [32]). It was held that the trial judge in that matter had erred by undertaking an evaluation of the weight of the evidence as distinct from considering whether taken at its highest it could support a verdict of guilty. Furthermore, the trial judge erred by reaching his conclusion after evaluating the alternative hypothesis open to the jury.

Consideration

126. There is no dispute in this trial that the deceased was murdered in Abbotsbury on 12 July 2013. There is no issue that the act of the shooter was voluntary, that whoever shot the deceased intended to either kill or inflict grievous bodily harm on him and that the actions of the shooter caused the death of the deceased.

127. The only issue in the trial is whether the Crown can prove beyond reasonable doubt that the accused was either the shooter or the driver in Thorpe Place in the early hours of 12 July 2013. The Crown case is that it can be inferred from the circumstances of the surveillance and the shooting that the shooter and the driver had formed an agreement to shoot the accused with an intention either to kill him or to inflict grievous bodily harm on him and that, by being the shooter and the driver respectively, they both took part in that enterprise

126. As stated above at [79], the Crown Prosecutor opened to the jury on the basis that there were two intermediate facts in this trial that must be established beyond reasonable doubt before the accused could be convicted of murder: first, that the silver Subaru WRX in Thorpe Place on 12 July 2013 was Younes’ car; and secondly, that the accused was either the shooter or the driver in that car at that time. The Crown’s position is consistent with what the High Court held in Shepherd v The Queen (1990) 170 CLR 573; namely, that where a fact relied upon by the Crown is fundamental to the process of reasoning to guilt, then it must be proved beyond reasonable doubt. Such a fact is referred to as an “intermediate fact” and a circumstantial case of this nature is referred to as a “link in a chain case”.

127. Mr Dalton’s application for a directed verdict of acquittal in this matter is based upon the absence of proof regarding the second of these two intermediate facts. It is not based on a submission that the evidence did not have the capacity to establish beyond reasonable doubt that the vehicle used in the shooting was Younes’ car. Accordingly, I have considered this no case application on the basis that the jury could accept that the car used in the murder was in fact Younes’ car.

128. Mr Dalton submitted that there was no evidence capable of establishing beyond reasonable doubt that the accused was either the shooter or the driver of the vehicle captured by CCTV footage in Thorpe Place, Abbotsbury between 6.30am and 10am on 12 July 2013. I note that, if it is assumed that the vehicle used was Younes’ car, then the intermediate fact of whether the accused was either the shooter or the driver is in fact the ultimate issue in the trial; namely, whether the accused is guilty.

129. On the basis that it is to be assumed that the jury could find that the car used in the murder was Younes’ car, there are eleven pieces of circumstantial evidence relevant to the question of whether the Crown case is capable of establishing beyond reasonable doubt that the accused was either the shooter or the driver on 12 July 2013. None of them are in dispute in the trial. They are as follows.

130. First, the accused borrowed Younes’ silver Subaru WRX with registration BU51NU at 4pm on 10 July 2013.

131. Second, Younes’ silver Subaru WRX was observed outside the accused’s home at 5 Rock Street in Yagoona at 4pm on 11 July 2013 with three people in it, none of whom were the accused.

132. Third, information downloaded from the accused’s mobile telephone shows that Younes sent him a text message at 1am on 12 July 2013 in these terms: "leave it on Rex's tyre". “Rex” is consistent with being a reference to Younes’ Subaru WRX.

133. Fourth, a silver Subaru WRX (on the Crown case this was Younes’ car) was observed by CCTV footage in Thorpe Place, Abbotsbury from 6.30am - 10am on 12 July 2013 and was involved in the shooting of the deceased.

134. Fifth, the accused’s telephone records show that one of his two mobile telephone services was receiving texts and voicemail messages in the Yagoona area where he resides from about 2am until 10.31am on 21 July 2013 and the other appears to have been turned off or otherwise not transmitting during that time. Neither of his telephones could have been in Abbotsbury that morning. The evidence was consistent with their being at the accused’s premises in Rock Street at the time of the shooting in Abbotsbury. The Crown relies upon this to show that the accused did not wish to be tracked through his mobile telephone usage and hence deliberately left his telephones at home.

135. Sixth, at 10.32am on 12 July 2013 the accused returned Younes’ vehicle to 151 Wycombe St in Yagoona, around the corner from where he lives. In that footage he is looking at something in his hand that could be a mobile telephone. This is consistent with his call charge and reverse call charge records, which show him making calls/texts at 10:31am and 10:32am that morning. He is wearing clothing that appears to be different from that worn by the shooter as described by eyewitnesses in Thorpe Place.

136. Seventh, the evidence of police is that the route from 12 Thorpe Place, Abbotsbury to 151 Wycombe Street, Yagoona can take as little as 22 minutes obeying all traffic rules including the speed limit. On 12 July 2013, the vehicle left Thorpe Place at 10:02am and is next seen when the accused drops it off at 151 Wycombe Street at 10:32am.

137. Eighth, when the accused is seen on CCTV footage in Campsie at 11:30am, he is wearing different clothing from that seen when he drops the car off at 151 Wycombe Street.

138. Ninth, the accused already had access to two other vehicles: a white Lexus and a dark blue Range Rover.

139. Tenth, after the two occasions that investigating police spoke with Younes on 6 August 2013 and 14 August 2013 and also after the occasion that they spoke to Ms Bakhos on 16 October 2013, all three of them (Younes, Bakhos and the accused) met up.

140. Eleventh, police were unable to find the jumper worn by the accused in the 151 Wycombe St footage on 12 July 2013 when they searched the accused’s premises on 30 October 2013. This is consistent with him having disposed of it as it was worn on 12 July 2013.

141. Although there is other evidence in the case as set out in detail above, much of that goes to establishing that the car used in the shooting was Younes’ car.

142. It is to be noted that, although the Crown Prosecutor opened to the jury that the shooter was more likely to have been the accused, he had resiled from that position by the end of the Crown case given that the descriptions of the shooter did not match the height of the accused nor the clothing that he wore that day. I do not understand that the Crown Prosecutor still proposes to put to the jury positively that the accused was more likely to have been the shooter. I will approach my consideration on the basis that the Crown case is that he was either of the two men and, based on principles of joint criminal enterprise, it not necessary to prove which one.

143. The evidence in the Crown case described above is consistent with the accused being in possession of the vehicle at the relevant time. Mr Dalton does not dispute that the evidence shows that the accused had the opportunity to be involved in the murder. His submission is that opportunity alone is not capable of establishing actual presence beyond reasonable doubt. The question is whether the state of the evidence, taken at its highest, has the capacity to go beyond establishing that the accused had the opportunity to have been either the driver or shooter in Thorpe Place that morning such that it has the capacity to prove beyond reasonable doubt that he was in fact either the shooter or the driver in the car that day.

144. In determining whether the evidence has that capacity, I have had close regard to the relevant authorities and to the legal principles applicable to my determination. It is not for me as the trial judge to direct a verdict of acquittal if I am of the view that the evidence is very weak. Nor is the test whether I am concerned that a verdict would be unreasonable within the meaning of s 6(3) of the Criminal Appeal Act1912 (NSW). I have had regard to the fact that the accused has been put in the charge of the jury and the case, no matter how weak, should be left to the jury unless the accused could not be lawfully be convicted on the evidence.

145. Furthermore, the test for directing an acquittal based on a defect in the Crown case is a very high test. Even if the evidence is “tenuous or inherently weak or vague”, nonetheless the matter must be left to the jury if the evidence is capable of supporting a verdict of guilty. I may only direct a verdict of acquittal in this matter if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. In a circumstantial case, I consider the evidence at its strongest and assume that all inferences most favourable to the prosecution which are reasonably open are drawn.

146. The Crown relies upon the circumstances enumerated above to infer that the accused was in possession of the car at the time that it was in Thorpe Place. He relies upon the fact that he was the one who borrowed it and brought it back almost immediately after the shooting. On the Crown case the timing is key.

147. I accept Mr Dalton’s submission that evidence that goes to more than opportunity alone is required, but I am satisfied that the evidence goes slightly beyond that because of the relevant timing. Taking the Crown case at its highest and assuming that it was established that Younes’ car was the one used in the murder (as I must for the purpose of my determination), the undisputed evidence shows that the accused was the driver of the vehicle at 10:32am, almost immediately after the shooting. The fact that on the Crown case the accused must have picked up his phones from his home before returning the car makes the case weaker, but it could not be said there is no evidence to suggest he was the driver in Thorpe Place that day.

148. The Crown case is very weak. It is completely circumstantial with no direct evidence implicating the accused. Despite this, the test is not whether I am of the view that the jury would or should convict. I can only direct an acquittal if I form the view that the evidence does not have the capacity to establish beyond reasonable doubt that the accused was in the car in Thorpe Place that morning either as the shooter or the driver. This is not a matter where there is a defect in the evidence such that an element cannot be proven at law. This is a circumstantial case where I am being asked to assess evidence available in the case from which different inferences are capable of being drawn.

149. I have had regard to the decision of R v Josephine Pintabona upon which Mr Dalton relied. The reasons of RS Hulme J at first instance are brief (two pages) and do not set out any principle of law. The relevant facts are to be found in the subsequent Court of Criminal Appeal decision. Mr Dalton relies upon that case by way of analogy to submit, in effect, that if the evidence in that case, which was stronger than in the present case, was held to be insufficient to go to the jury then, a fortiori, so too must the evidence in this case. Although I accept that the directed acquittal in that matter was made in the face of a stronger case than the present matter, it was a very different case. Given the lack of any application of the facts to the relevant legal principles in that decision, it is not of any assistance to the matters I have to determine.

150. In light of all of the above I have formed the view that, although the Crown case is very weak, the evidence has the capacity to establish beyond reasonable doubt that the accused was in the silver Subaru WRX in Thorpe Place on the morning of 12 July 2013 as either the shooter or the driver.

151. Accordingly, I do not propose to direct the jury to enter a verdict of acquittal

ORDER

154. The application for a verdict by direction is refused.

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Decision last updated: 20 December 2016